Ulpianus, On Sabinus, Book XVII. Provided, however, they always pay the rent.

Ulpianus, On Sabinus, Book XVII. Where an usufruct is bequeathed as a legacy, the entire profits of the property belong to the usufructuary. An usufruct of either real or personal property may be bequeathed. 1When that of real property is bequeathed, as for instance, where the usufruct of a house is left, all income therefrom belongs to the usufructuary; and also whatever is derived from buildings, enclosures, and the other things which appertain to the house. Wherefore, it has been established that an usufructuary can be placed in possession of an adjoining building, with a view to the prevention of threatened injury; and he can retain possession of the said building as owner, if the other party persists in not furnishing security; nor will he lose anything when the usufruct is terminated. On this principle, Labeo states that the owner of property has no right to raise his building if you are unwilling; as, where the usufruct of unoccupied ground has been bequeathed, he cannot erect a house thereon; which opinion I think to be correct. 2Therefore, since all the produce of the property belongs to the usufructuary, he can, as Celsus states in the Eighteenth Book of the Digest, be compelled by application to the court to repair the house, only so far, however, as to keep it in good condition, but if any of it should be destroyed through age, neither one of the parties can be compelled to repair it; still, if the heir should do so, he must permit the usufructuary to use it; wherefore Celsus asks to what an extent must it be kept in repair? If any portions are destroyed by age he cannot be compelled to repair them, and therefore he is only liable for moderate repairs, since as the usufruct is left to him, he assumes other burdens also, as for instance, taxes, tribute, rent, or a provision for maintenance charged upon the property; and this Marcellus stated in the Thirteenth Book. 3Cassius also says in the Eighth Book of the Civil Law that an usufructuary can be compelled to make repairs by applying to the court, just as he is obliged to plant trees; and Aristo states in a note that this is correct. Neratius also says in the Fourth Book of Parchments, that an usufructuary cannot be prohibited from making repairs, for the same reason that he cannot be prevented from plowing or cultivating the soil; and not only can he make necessary repairs, but also he may make improvements for the purpose of enjoyment, as stucco-work, mosaic pavements, and things of this kind; but he cannot enlarge the buildings, or remove anything from them which is useful:

The Same, On Sabinus, Book XVII. Moreover, where the usufruct of land has been bequeathed, whatever is derived from the land and whatever can be collected therefrom, is included in the profits which belong to the legatee, on the condition, however, that he makes use of it as a good citizen would do; and indeed, Celsus states in the Eighteenth Book of the Digest, that he can be compelled to cultivate the land in a suitable manner. 1If there are bees on the land, the usufruct of them also belongs to him. 2But where the land contains stone quarries, and the usufructuary desires to cut stone, or it contains chalk or sand pits; Sabinus says he has a right to make use of all these, just as a thrifty owner would do; which I think to be the correct opinion. 3Even where these quarries have been discovered after the bequest of the usufruct, when the usufruct of the entire field and not certain parts of the same were left, they are included in the legacy. 4Ad Dig. 7,1,9,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 188, Note 2.Intimately connected with this is a question which has often been treated of with respect to accessions, made to property; and it has been established that the usufruct of alluvial soil also belongs to the usufructuary. But where an island appears in a river opposite a tract of land, Pegasus says that the usufruct of it does not belong to the usufructuary of the adjoining land, although it is an accession to the property; for it is, as it were, a peculiar tract of real-estate to whose usufruct you are not entitled. This opinion is not unreasonable, for where the increase is not noticeable the usufruct is increased, but where it appears separately, it does not contribute to the benefit of the usufructuary. 5Ad Dig. 7,1,9,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 184, Note 5.Cassius states in the Eighth Book of the Civil Law that the proceeds obtained from the capture of birds and game belong to the usufructuary, and therefore those from fishing do also. 6I am of the opinion that the yield of a nursery also belongs to the usufructuary, so that he also has the right to sell and to plant; but he is obliged to have the bed always prepared, and to renew it for the purpose of replanting the same, as a kind of implement to be employed for the benefit of the land; so that, when the usufruct is terminated it may be restored to the owner. 7He is likewise entitled to what this implement for the good of the land produces, but he has not the power to sell it; for if the usufruct of the land was bequeathed, and there is a field where the owner was accustomed to obtain stakes, osiers, or reeds for the use of the land, the usufruct of which was bequeathed; I am of the opinion that the usufructuary can make use of the same, provided he does not sell anything off of it, unless if it should happen that an usufruct was left to him of a clump of willows, or of the wood where the stakes were found, or of the bed of reeds; for then he can sell the same. Trebatius says that the usufructuary can cut stakes and reeds just as the owner of the land was accustomed to do, and can sell them, even though the former was not accustomed to do so, but to use them himself; as the condition of the usufructuary must be considered with reference to the amount to be used, and not to the manner of using it.

Ulpianus, On Sabinus, Book XVII. Where trees are uprooted or overthrown by the force of the wind, Labeo says that the usufructuary can recover them for his own use, and that of his household, but he must not use the timber for firewood, if he has any other available for that purpose; and I think that this opinion is correct, otherwise, if all the land should suffer this misfortune, the usufructuary could remove all the trees. Labeo, however, thinks that he has a right to cut down as many trees as are necessary for the repair of the house; just as he can burn lime, or dig sand, or take anything else which is necessary for the building. 1Where the usufruct of a ship has been bequeathed, I think that it can be sent to sea, although the danger of shipwreck may be threatened; as a ship is constructed for the purpose of navigation. 2The usufructuary can either enjoy the property itself, or transfer the right of enjoyment to another, or he can leave, or sell the latter; for a man who leases and one who sells also uses. But where he transfers it to someone to be held on sufferance, or donates it, I think that he uses it, and therefore retains the usufruct of the same; and this was the opinion of Cassius and Pegasus, and Pomponius adopts it in the Fifth Book on Sabinus. For not only do I retain the usufruct, if I lease it, but also where another person who is transacting my business leases the usufruct, Julianus states in the Thirty-first Book, that I still retain it. Where, however, I do not lease it, but while I am absent, and ignorant of the fact, someone who transacts my business makes use of it, and enjoys it; I, nevertheless, retain the usufruct, because I have acquired a right of action on the ground of business transacted; and this opinion Pomponius approves in the Fifth Book. 3Pomponius is in doubt as to the following case, namely, where a fugitive slave in whom I have an usufruct stipulates for something with reference to my property, or receives something by delivery, do I retain the usufruct under these circumstances, on the ground that I am making use of him? He fully admits that I do retain it, for he says that very often we may not be using slaves at the time, but we retain the usufruct in them; for example, where a slave is ill, or is an infant, his services are of no value, or where he becomes decrepit through old age. We still retain the usufruct if we plow a field, although it is so barren that it yields no crop. Julianus, however, states in the Thirty-fifth Book of the Digest, that even where a fugitive slave does not stipulate for anything the usufruct is still retained; for he says, on the principle that possession is retained by the owner where the slave has fled, on the same principle the usufruct is also retained. 4He also discusses the following question, namely, where anyone acquires possession of the slave, must the usufruct be lost, just as the slave ceases to be in possession of the mere owner? And first he says that it may be held that the usufruct is lost, but even if it is, it must also be held that whatever the slave may have stipulated for with reference to the property of the usufructuary, within the time established by law, can be acquired by the usufructuary. From this it may be said to be inferred that even if the slave is in the possession of another person, the usufruct is not lost, provided the slave stipulated for something for me; and it makes but little difference whether he is in possession of the heir, or of someone else, to whom the estate has been sold, or to whom the mere ownership has been bequeathed, or even of a plunderer; for it will be sufficient for the usufruct to be retained if there is a desire to hold it, and the slave performs some act in behalf of the usufructuary; and this opinion seems to be reasonable. 5Ad Dig. 7,1,12,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 5.Julianus presents the following question in the Thirty-fifth Book of the Digest. If a thief plucks, or cuts off ripe fruit which is hanging upon a tree, who will be entitled to a suit against him for its recovery; the owner of the land, or the usufructuary? And he thinks that as fruit does not belong to the usufructuary unless it has been gathered by him, even though it should be separated from the land by another person, the proprietor has the better right to bring an action for its recovery; but the usufructuary has a right to an action for theft, for it was to his interest that the fruit should not have been removed. Marcellus, however, is influenced by the fact that if the usufructuary subsequently obtains possession of the fruit, it will perhaps become his; and if it does, under what rule will this happen, unless that, in the meantime, it belonged to the mere owner, for, as soon as the usufructuary secures it, it becomes his, just as where property is bequeathed under some condition, and, in the meantime, belongs to an heir, but when the condition is complied with, it passes to the legatee; for it is true that the mere owner is entitled to an action for its recovery. Where, however, the ownership is in suspense, as Julianus himself says in a case where the young of animals which are permitted to grow up have died; and where a slave subject to an usufruct received something by delivery for which the price had not yet been paid, but security had been given; it must be held that the right of action for its recovery remains in suspense, and that the ownership of the property is even more in abeyance.

The Same, On Sabinus, Book XVII. Where the usufruct of a slave is bequeathed, whatever he earns by his own labor or by means of the property of the usufructuary belongs to the latter; whether the slave stipulates, or possession is delivered to him. But where a slave has been appointed an heir, or receives a legacy, Labeo makes a distinction dependent upon whose behalf he is appointed heir or receives the legacy.

The Same, On Sabinus, Book XVII. But just as the slave by stipulating acquires property for the usufructuary, in like manner, as Julianus states in the Thirtieth Book of the Digest, he can, by means of an informal contract, acquire an exception for the usufructuary; and also, by securing a release, he can obtain a discharge for him. 1We have previously stated that what is acquired by the labor of the slave belongs to the usufructuary; but it must be borne in mind that he can be forced to work; for Sabinus has given the opinion that the usufructuary can administer moderate punishment, and Cassius says in the Eighth Book of the Civil Law, that he cannot torture the slave, or scourge him.

Ulpianus, On Sabinus, Book XVII. The question was raised in ancient times whether the issue of a female slave belonged to the usufructuary? The opinion of Brutus prevailed, namely, that the usufructuary had no right to it, as one human being cannot be considered as the product of another; and for this reason the usufructuary cannot be entitled to a usufruct in the same. If, however, the usufruct was left in the child before it was born, would he be entitled to it? The answer is that since offspring can be bequeathed, the usufruct of it can be also. 1Sabinus and Cassius are of the opinion that the increase of cattle belongs to the usufructuary. 2Ad Dig. 7,1,68,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.It is evident that the person to whom the usufruct of a flock or a herd is bequeathed, must make up any loss out of the increase, that is to say, replace those which have died,

Ulpianus, On Sabinus, Book XVII. What then must be done if the usufructuary does not act as above stated, and does not replace the cattle? Gaius Cassius says in the Tenth Book of the Civil Law, that he is liable to the owner. 1In the meantime, however, while they are being reared and those which are dead are being replaced, the question arises, to whom does the increase belong? Julianus in the Thirty-fifth Book of the Digest holds that the ownership is in abeyance; for if they are used to replace others they belong to the proprietor; but, if not, they belong to the usufructuary; which opinion is the correct one. 2In accordance with this, if the young die, it will be at the risk of the usufructuary and not at that of the owner, and it will be necessary for him to provide others. Whence Gaius Cassius states in the Eighth Book, that the flesh of any dead young animal belongs to the usufructuary. 3Where it is stated that the usufructuary must provide others; this is only true where the usufruct of a flock, a herd, or a stud of horses, that is to say, of an entire number, has been bequeathed; for where only certain heads of the same are left, there will be nothing for him to replace. 4Moreover, suppose that, at the time when the young animals are born, nothing has occurred by which he was required to replace some of them, but after their birth this became necessary; it must be considered whether he should replace them from those born last, or those born previously? I think the better opinion to be, that those which are born when the flock is complete belong to the usufructuary; and that he will only lose by reason of some subsequent injury to the flock. 5Replacement is a matter of fact, and Julianus very properly says that it means to separate, set apart, and to make a certain division; because the ownership of those which are set aside is in the proprietor.

Ulpianus, On Sabinus, Book XVII. Where the owner of the mere property bequeaths an usufruct, what Marcianus stated in the Third Book of Questions, on Trusts, is correct, namely: that the bequest is valid; and if the usufruct should happen to be merged in the property during the life of the testator, or before the estate is entered upon, it will belong to the legatee. Marcianus goes even further, for he holds that if the usufruct was merged after the estate had been entered upon, it becomes legally vested and belongs to the legatee.

Ulpianus, On Sabinus, Book XVII. Where an usufruct is bequeathed, the right of accrual between usufructuaries only exists where the usufruct is left conjointly; but where it is left separately to each one of the parties, the right of accrual undoubtedly ceases to exist. 1Hence, it is asked by Julianus in the Thirty-fifth Book of the Digest, if an usufruct is left to a slave owned in common, and is acquired by both owners, whether if one of them rejects or loses the usufruct, the other shall have the whole of it? He thinks that it belongs to the other, and even though the usufruct was acquired by the owner of the slave, not in equal shares but in shares corresponding to their interest in the slave; still, the personality of the slave and not that of the owners must be considered; so that it belongs to one of the owners and does not accrue to the mere property. 2He also says that where an usufruct is bequeathed to a slave owned in common, and to Titius separately, and the usufruct is lost by the other joint owner, it will not belong to Titius, but to the remaining owner alone, as he was the only one who had a right to it jointly; and this opinion is the correct one, for as long as only one is making use of the property, it may be said that the usufruct is in its former condition. The same rule applies where the usufruct is left to two persons jointly, and to another separately. 3Ad Dig. 7,2,1,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 645, Note 2.Sometimes, however, even if the parties were not joint legatees, the usufruct bequeathed vests in one of them by accrual; as, for instance, where the usufruct of an entire estate is left to me separately, and it is left to you in the same way. For (as Celsus states in the Eighteenth Book, and Julianus in the Thirty-fifth Book of the Digest), we hold shares by concurrence; and this would also happen so far as the ownership is concerned; for if one rejected it, the other would be entitled to the entire estate. But there is this point in addition with reference to the usufruct; since it has been created and afterwards lost, the right of accrual, nevertheless, exists, for all authors quoted by Plautius are of this opinion; and, (as Celsus and Julian very properly say) an usufruct is created and bequeathed every day, and not, like ownership, only at the time when an action can be brought to recover it. Thus, as soon as either party does not find anyone associated with him, he alone can make use of the entire usufruct; nor does it make any difference whether it was jointly or severally bequeathed. 4Julianus also states in the Thirty-fifth Book of the Digest, that where two heirs have been appointed and the mere ownership bequeathed, the usufruct being reserved; the heirs have no right of accrual, for the usufruct is held to have been created, not divided by concurrence;

Ulpianus, On Sabinus, Book XVII. Neratius, in the First Book of Opinions, thinks that the right of accrual is extinguished under such circumstances; and the principle stated by Celsus agrees with this opinion, namely, that the right of accrual exists where two parties have the entire usufruct, and it is divided between them by their association. 1Therefore, Celsus states in the Eighteenth Book, that where two owners of an estate convey the property after having reserved the usufruct of the same, and either of them loses his usufruct, it will revert to the mere property, but not to all of it; for the usufruct of each accrues to the share which each one conveyed, and it must revert to the share from which, in the beginning, it was separated. 2Ad Dig. 7,2,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 205, Note 4; Bd. III, § 645, Note 3.But not only the right of accrual exists where an usufruct is bequeathed to two parties, but also where it is bequeathed to one, and the estate to another; for if the one to whom an usufruct was left should lose it, it will belong to the other rather through the right of accrual than by reversion to the property; nor is there anything unusual in this, for where an usufruct is bequeathed to two persons and, while held by one of them, is merged into the mere property, the right of accrual is not lost either by him with whom it was merged, nor by him for the benefit of the other; and no matter how he may have lost his usufruct before the merger, he may lose it in the same manner now. This opinion is held by Neratius and Aristo, and is approved by Pomponius.

Ulpianus, On Sabinus, Book XVII. The same rule applies where the usufruct is merged in property in the hands of one of three usufructuaries. 1But where property is bequeathed to anyone, the usufruct having been reserved, and a portion of the usufruct is bequeathed to me; it should be considered whether the right of accrual exists between me and the heir? The correct opinion is, however, that if anyone loses the usufruct it reverts to the property. 2Where the usufruct of an estate is left to me absolutely, and to you under a certain condition, it can be said that the usufruct of the entire estate belongs to me in the meantime, and that if I should lose my civil rights the entire usufruct will be lost; but if the condition is complied with, the entire usufruct will belong to you if I should lose my civil rights, but if I retain my condition, the usufruct must be divided between us.

Ulpianus, On Sabinus, Book XVII. Where an usufruct is bequeathed to a woman, “with her children”; and she loses her children, she will be entitled to the usufruct; but where the mother dies, her children will, nevertheless, be entitled to the usufruct by the right of accrual. For, as Julianus remarks in the Thirtieth Book of the Digest, the same rule must be understood to apply where a testator appoints his children his sole heirs; even though he does not name them as legatees, but only wishes to make it more plain that the mother shall enjoy the estate, and have her children enjoy it with her. But Pomponius makes the inquiry: “What if the children and the foreign heirs are mingled together?” He says that the children must be understood to be legatees; and, on the other hand, if the testator wished his children to enjoy the estate along with their mother, it must be held that the mother should be understood to be a legatee; so, in this instance, the effect of the law will be in every respect similar to that previously mentioned.

Ulpianus, On Sabinus, Book XVII. Since each legatee can bring an action against one of the heirs to recover the usufruct.

Ulpianus, On Sabinus, Book XVII. Although an usufruct consists of enjoyment, that is to say, in some effort exerted by him who enjoys and uses the right; still, it vests but once, and it is different from where something is bequeathed every month, or every day, or every year; for then the legacy vests daily, monthly, or yearly. Wherefore the question may arise, where an usufruct is bequeathed to anyone, for every day, or for every year, does it vest but once? I think that it does not, but as many times as it is mentioned, so that there are several legacies. Marcellus approves this opinion in the Fourth Book of the Digest, where an usufruct is bequeathed to anyone for alternate days. 1Therefore, if an usufruct is bequeathed which cannot be enjoyed every day, the bequest will not be invalid, but it will vest on the day when it can be enjoyed. 2An usufruct, however, and likewise an use, will not vest before the estate is entered upon, for an usufruct is not created until someone can immediately enjoy it. According to this rule, if the usufruct is bequeathed to a slave forming part of an estate, Julianus holds that, although other legacies may be acquired by the estate, in the case of an usufruct we must wait for the person of the owner who can use and enjoy the same. 3Moreover, if an usufruct is bequeathed from a certain day, it will not vest until the day arrives; for it is established that an usufruct can be bequeathed from a certain time or until a certain time. 4Not only does an usufruct not vest before the estate is entered upon, but a right of action based upon usufruct does not do so either; and the same rule applies where an usufruct is bequeathed after a certain day; hence, Scævola says that a party who brings an action before the day of the usufruct will gain nothing; although any legal procedure which is instituted before the proper time is void.

Ulpianus, On Sabinus, Book XVII. It is established that an usufruct is not only lost by forfeiture of civil rights, but that the right of action based on usufruct is also lost; and it makes little difference whether the usufruct was created by law or with the assistance of the Prætor. Hence, where an usufruct is delivered, or is created not strictly by law but through a perpetual lease, or occupancy of the surface of land, it is lost with the forfeiture of civil rights. 1Thus usufruct can be lost by a forfeiture of civil rights only where it has been already created; but if anyone forfeits his civil rights before the estate is entered upon, or before the usufruct has vested, it is held that it is not lost. 2Where an estate in land is devised to you from a certain day, and you are asked to deliver the usufruct to me, it should be considered whether, if I have lost my civil rights before the day mentioned in the devise to you, my usufruct is not safe; as the loss of civil rights must occur before the usufruct vests, which may be said to be a liberal interpretation. 3To such an extent is it a fact that the loss of civil rights not only destroys an usufruct which has already been created, but if an usufruct has been bequeathed for every year, month, or day, that only is lost which is running at the time; and where, for instance, it is bequeathed for separate years, the usufruct for that year only is lost, and if for separate months, that month, and if for separate days, that day.

Ulpianus, On Sabinus, Book XVII. Just as an usufruct can be bequeathed for separate years, so also it can again be bequeathed if lost by forfeiture of civil rights, as where the addition is made: “Whenever So-and-So loses his civil rights I bequeath to him”; or, as follows: “Whenever it shall be lost”; and then, if it is lost by the forfeiture of civil rights, it will be considered to have been renewed. Wherefore, it has been discussed, where an usufruct is bequeathed to anyone for as long as he lives, whether it must be held to be renewed as often as it is lost? Marcianus adopts this opinion, and I think that it must be held to be renewed; therefore if an usufruct is bequeathed for a certain time, as for instance, for ten years, the same principle will apply. 1The question arises with reference to the renewal which takes place after an usufruct has been lost by forfeiture of civil rights, whether the right of accrual remains unimpaired; for example, where an usufruct was bequeathed to Titius and Mævius, and Titius, having lost his civil rights, the testator bequeathed him the usufruct a second time; and inquiry was made if Titius should again receive the usufruct by renewal whether the right of accrual would remain unimpaired between the parties? Papinianus states in the Seventeenth Book of Questions that it does remain unimpaired, just as if some other person had been substituted for Titius in the enjoyment of the usufruct; for these parties are held to be conjoined in fact, if not in words. 2Ad Dig. 7,4,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 645, Note 4.Papinianus also asks if the testator, after having left the usufruct to Titius and Mævius, in the second bequest of the same, did not leave the entire usufruct but only a portion of it to Titius, would they be considered to be conjoined? He says in reply, that if Titius should lose his share, it would all accrue to his associate; but if Mævius should lose his, the whole would not accrue, but half would belong to him, and half would revert to the property. This opinion is reasonable, for it cannot be held that the ground on which a person loses the usufruct and takes it back will entitle him to any accrual from the usufruct; as it is our opinion that he who loses an usufruct can gain nothing by accrual out of what he loses. 3There is no doubt whatever that an usufruct can also be lost by death; since the right of enjoyment is extinguished by death, just as any other right which attaches to the person.

Ulpianus, On Sabinus, Book XVII. Ad Dig. 7,4,5 pr.ROHGE, Bd. 12 (1874), Nr. 106, S. 360: Verträge zu Gunsten eines Contrahenten und eines noch unbestimmten Personenkreises. Verträge über das Aufführungsrecht des contrahirenden Theaterdirectors und dessen Nachfolger.An usufruct which has been bequeathed may be renewed without reference to the way in which it was lost, provided that it was not lost by death, unless the testator, under such circumstances, bequeathed it to the heirs of the usufructuary. 1Where anyone alienates only the usufruct in a slave by whom he has acquired an usufruct, there is no doubt that he retains the usufruct which was acquired through him. 2It is established that an usufruct is terminated by a change of the property to which it belongs; for example, if a bequest was made to me of the usufruct in a house, and the house has been demolished, or burned, the usufruct is unquestionably extinguished. Does this also apply to the ground? It is absolutely certain that where the house is burned down, no usufruct remains in either the ground or the materials; and Julianus is of this opinion. 3Where the usufruct of the ground is bequeathed, and a house is built upon the latter, it is established that the property is changed, and that the usufruct is extinguished. It is clear that if the mere owner built it, he will be liable to an action on the will, or to one on the ground of fraud.

Ulpianus, On Sabinus, Book XVII. Where the usufruct of an estate is bequeathed, if the house should be destroyed the usufruct will not be extinguished, because the house is an accession to the land; any more than if trees were to fall.

Ulpianus, On Sabinus, Book XVII. What would be the case, however, if the land was an accession to the house? Let us see whether, in this instance, the usufruct of the land would not also be extinguished, and we must hold the same opinion, namely, that it would not be extinguished. 1The usufruct is extinguished not only where the building has been levelled with the ground, but also where, after having demolished the house, the testator erects a new one in its place; for it is evident that if he repairs certain portions of it we must establish a different rule, even though the entire house should be renewed. 2Where the usufruct of a field or an enclosure is bequeathed, and it is inundated so as to become a pond, or a swamp, the usufruct will undoubtedly be extinguished. 3Moreover, where the usufruct of a pond is bequeathed, and it dries up so that it becomes a field; the property being changed, the usufruct is extinguished. 4I do not think, however, where the usufruct of tillable land is bequeathed and vineyards are planted thereon, or vice versa, that the usufruct is extinguished. It is certain, however, where the usufruct of a wood is bequeathed, and the trees are cut down, and seed sowed upon the land, that the usufruct is extinguished. 5Where the usufruct of a mass of metal is bequeathed, and vessels are made out of it, or vice versa, Cassius, as quoted by Urseius, says that the usufruct is terminated, and I think this opinion to be the correct one. 6Thus, where an ornament is destroyed, or its shape is changed, this extinguishes the usufruct therein. 7Sabinus also states with reference to the usufruct of a ship, that where certain portions of the same are repaired, the usufruct is not lost; but where it is taken apart, even though it should be rebuilt out of the same timber and nothing additional be supplied, the usufruct will be extinguished; and this opinion I think to be the better one, for where a house is rebuilt, the usufruct is extinguished. 8Where the usufruct in a team of four horses is bequeathed, and one of them dies, the question arises, is the usufruct extinguished? I think that it makes a great deal of difference whether the usufruct in the horses, or in the team was bequeathed; for, if it was that of the horses it will remain in the others, but if it was that of the team, it will not remain, as it has ceased to be a team:

Ulpianus, On Sabinus, Book XVII. Where the usufruct of a bath is bequeathed, and the testator changed it into a lodging, or a shop, or made a residence out of it, it must be held that the usufruct is extinguished. 1Hence, if anyone leaves an usufruct in an actor and then transfers him to some other kind of service, it must be said that the usufruct is extinguished.

Ulpianus, On Sabinus, Book XVII. Ad Dig. 7,4,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 219, Note 5.Pomponius asks the following question: Where the mere owner of land rents it from me as usufructuary, and sells the same land to Seius without the reservation of the usufruct; do I retain the usufruct on account of the act of the purchaser? He says in reply: that although the mere owner may pay me rent, the usufruct nevertheless is extinguished, because the purchaser enjoys it not in my name, but in his own. It is evident that the mere proprietor is liable to me on account of the lease, to the extent of the interest I had in his not doing this; although, if anyone rents the usufruct from me and leases it to another, the usufruct is retained; but if the mere owner leases it in his own name, it must be held to be lost, for the tenant does not enjoy it in my name. 1But if the mere owner should sell the usufruct after it had been purchased from me, it might be asked, would I lose the usufruct? I think that I would lose it; since the purchaser, in this instance also, does not enjoy it as having been bought from me. 2Pomponius also makes this inquiry: If I am asked to deliver to you an usufruct which has been bequeathed to me, am I held to enjoy it through you, so that the usufruct will not be lost? He replied that he is in doubt with reference to this question; but the better opinion is, as Marcellus states in a note, that this matter does, in no way, prejudice the beneficiary of the trust, as he will be entitled to a prætorian action in his own name.

Ulpianus, On Sabinus, Book XVII. Where the use is left, a party can use but not enjoy. Now let us examine certain cases. 1The use of a house is left to the husband, or to the wife; where it is left to the husband, he can not only live in it himself, but can also reside there with his slaves. The question arose whether he could live there with his freedmen. Celsus holds that he can not only do so, but, that he can also entertain a guest; for he states this in the Eighteenth Book of the Digest, which opinion Tubero approves. Moreover, I remember that the question whether he can take a tenant is discussed by Labeo in the Book of his Last Works, who says that he who resides there can take a tenant, as well as entertain guests, along with his freedmen,

Ulpianus, On Sabinus, Book XVII. But persons of this kind must not live in the house without him. Proculus, however, in a note on tenants, says that one cannot properly be designated a tenant, who lives with him. In accordance with this, if the party having the use of the property collects rent as long as he himself lives in the house, this should not be mentioned to his prejudice; for suppose that the use of a large house was left to a man in moderate circumstances, so that he is content with a small portion of the same? Again, he may live with persons whom he employs in labor instead of slaves, even though they are free, or the slaves of others. 1Where the use is left to a woman, Quintus Mucius first admitted that she could live with her husband, since otherwise, if she wished to use the house, she would have to remain unmarried; for, on the other hand, there never was any doubt that a wife could live with her husband. Where the use is bequeathed to a widow, could this woman, if she contracted a second marriage after the use was established, reside there with her husband? And it is true, (as Pomponius in the Fifth Book, and Papinianus in the Nineteenth Book of Questions holds) that her husband can live with her if she is married subsequently. Pomponius goes still farther, and says that her father-in-law can also live with her.

Ulpianus, On Sabinus, Book XVII. A woman can not only have her husband live with her, but also her children and her freedmen, as well as her parents. Aristo states this in a note on Sabinus. Indeed, we may go as far as to say that women can entertain the same persons that men can.

Ulpianus, on Sabinus, Book XVII. Parties who have a right to use cannot lease the premises and give up their residence there, nor can they sell the use of the same. 1Where, however, the use of a house was bequeathed to a woman on condition that she would separate from her husband, she can be released from this condition, and can live with her husband. This opinion Pomponius also adopts in the Fifth Book.

Ulpianus, On Sabinus, Book XVII. Ad Dig. 7,8,10 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 208, Note 4.Where the right to a residence is left, the question arises is it the same as use? Papinianus in the Eighteenth Book of Questions admits that the bequest of use and habitation have practically the same effect; for the legatee of a right to a residence cannot give it away; he can entertain the same persons as the party who has the use; it does not pass to the heir; nor is it lost by want of use, nor by the forfeiture of civil rights. 1But where χρῆσις is left, it must be considered whether this constitutes use, and Papinianus in the Seventh Book of Opinions, states that the use is left, but not the income. 2Where, however, this is left in the following terms, “To So-and-So, the usufruct of the house for the purpose of residence therein”; it must be considered whether he is entitled only to the residence or to the usufruct as well? Priscus and Neratius think that the right of residence alone is left; which is correct. It is evident that if the testator had said, “The use for the purpose of residence”, we would not doubt that it was valid. 3The question was raised by the ancient authorities whether the right of residence for a year would endure for life? Rutilius says that the right of residence belongs to the party as long as he lives, and Celsus in the Eighteenth Book of the Digest approves this opinion. 4Where the use of a tract of land is left, this is very much less than the crops, as no one doubts. Let us see, however, what is involved in this bequest. Labeo says the legatee can live on the land and can prevent the owner from entering thereon; but he cannot prevent a tenant or the slaves of the owner from doing so; that is to say, those who are there for the purpose of cultivating the soil, but if the owner should send his household slaves there, they can be prevented from entering, on the same principle that the owner himself can be prevented from doing so. Labeo also states that the usuary can alone make use of the store-rooms for wine and oil, and that the owner cannot use them if the former is unwilling.

Ulpianus, On Sabinus, Book XVII. He has a right to have the full use, if that of the farm-house and the country-seat are left him. It is evident that it must certainly be held that the proprietor is entitled to come for the purpose of gathering the crops, and, during the time of the harvest, it must be admitted that he can live there. 1In addition to the right of residence to which the person who was granted the use is entitled, he has also the right of walking and driving around. Sabinus and Cassius state that he is likewise entitled to firewood for daily use, and also to the garden, and to apples, vegetables, flowers, and water, not however, for profit but merely for use and not to be wasted. Nerva holds the same opinion, and adds that he can use straw, but not leaves, oil, grain, or fruit. Sabinus, Cassius, Labeo, and Proculus go still further, and say that he can take enough out of what is raised on the land for his own maintenance and that of his family, in instances where Nerva denies him that right. Juventius holds that he can use these things for the benefit of his guests and the persons whom he entertains, and this opinion seems to me to be correct; for more indulgence may be accorded the usuary, on account of the respect due to a person to whom a use has been left. I think, however, that he can make use of these things only while in the house. With reference to apples, vegetables, flowers, and firewood, it must be considered whether he can only make use of them in that place, or whether they can be delivered to him in the town; but it is better to adopt the rule that they can be brought to him in the town, for this is not a matter of great importance, if there is an abundant supply of them on the land. 2Where the use of a flock is left, for instance, a flock of sheep; Labeo says that they can only be used for their manure; as he can not use the wool, the lambs, or the milk, for these are to be classed with the profits. I think that he can go still farther, and use a moderate quantity of milk, as the wills of deceased persons should not be interpreted so strictly. 3Where the use of a herd of cattle is left, the legatee will be entitled to the entire use of the same for plowing or for any other purpose for which cattle are adapted. 4Also, where the use of a stud of horses is bequeathed, let us consider whether the legatee cannot break them to harness and use them for draft. If the party to whom the use of said horses is left is a charioteer, I do not think that he can use them for races in the circus, because this might be considered to be hiring them; but if the testator, when he left them, was aware that this was his occupation and mode of life, he may be held to have intended them to be employed for this purpose. 5Where the use of a slave is left to anyone, he can use him for attendance upon himself, and upon his children and his wife, and he will not be deemed to have granted his right to another if he together with them make use of said slave; although if the employment of a slave is left to the son of a family or to another slave, as this will be acquired by the father or owner, he can only exact the use of him alone, and not that of those who are under his control. 6A legatee cannot lease the services of a slave subject to use, nor can he transfer them to another; and this is the opinion of Labeo. For how can a man transfer to another services which he himself should make use of? Labeo, however, holds that where a party has rented a farm, a slave of whom he has the use can work there; for what difference does it make in what way he uses his labor? Wherefore, if the party entitled to the use enters into a contract for the spinning of wool, he can have this done by female slaves of whom he has the use; and also, if he makes a contract for the weaving of clothing, or for the building of a house or a ship, he can employ the labor of the slave of whom he has the use. This opinion does not conflict with that of Sabinus that, where the use of a female slave is granted, she cannot be sent to a wool-factory, nor compensation be received for her labor; but the legatee must, in accordance with law, have her work the wool for himself; for she is held to do this for him where he does not hire her labor, but performs the work which he agreed to do. Octavenus also approves this opinion.

Ulpianus, On Sabinus, Book XVII. If I stipulate, or receive anything by delivery through a slave of whom I have the use, the question arises whether I make any acquisition either through my property or by his labor? It will not be valid if it is based on his labor, since I have no right to lease his services, but if what is acquired is derived through my property, we hold that if a slave of whom I have the use either stipulates or receives anything by delivery he acquires for me, since I am making use of his labor. 1Ad Dig. 7,8,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 202, Note 1.It makes no difference whether the usufruct or the crop is bequeathed, for the use is included in the crop, but the crop does not include the use; and while a crop cannot exist without the use, still the use may exist without the crop. Hence, if the crop is bequeathed to you after the use has been reserved, the bequest is void, as Pomponius states in the Fifth Book On Sabinus; and he also says that where an usufruct is bequeathed but the crops are withheld, the entire legacy must be considered to be revoked. Where, however, the crop is bequeathed without the use it is held to have been created, since it might have been created in the beginning. But in case the usufruct is bequeathed and the use is withheld, Aristo stated that there is no revocation. This opinion is the more liberal one. 2Ad Dig. 7,8,14,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 202, Note 1.Where the use is bequeathed and afterwards the crop to the same person; Pomponius says that it is joined to the use. He also says that if the use is bequeathed to you and the crop to me, we hold the use in common, but that I alone will be entitled to the crop. 3The use, however, may belong to one person, the crop without the use to another, and the mere property to still another; for example, where a party who had a certain tract of land bequeathed the use of the same to Titius, and afterwards his heir bequeathed the crop to you, or transferred them to you in some other way.

The Same, On Sabinus, Book XVII. If an heir should manumit a slave who has been bequeathed, while the legatee is deliberating whether he will accept him or not, it is settled that the slave will be free if the legatee should finally conclude to reject the bequest.

Ad Dig. 45,1,114Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 278, Note 2.Ulpianus, On Sabinus, Book XVII. If I stipulate for the transfer of a specified tract of land, upon a certain day, and the promisor is responsible for it not having been transferred on that day, I can recover damages to the amount of my interest in not having the delay take place.